Subverting due processes to get expeditious ‘justice’

We alerted the public in our editorial of 16th Oct 15 about a piece of legislation under preparation, according to press reports, the object of which would be for the government to seize “unexplained wealth” in the hands of citizens. The related Bill, the Good Governance and integrity Reporting Bill, was presented on 23rd October before the National Assembly.

Seen without the superlatives employed in its name, the Bill relates actually to the forfeiture – without going through a court process to establish crime – of wealth that is suspected by the Integrity Reporting Services Agency and confirmed by the Integrity Reporting Board, two public bodies (Agency), residing in a specific ministry, to be in excess of what a person would be expected to have. The Agency just has to form an opinion that the said “unexplained wealth” should have been acquired other than through lawful means and it would charge the owner to explain. The proposed legislation also provides that its jurisdiction will extend, as far as the past is concerned, to “unexplained wealth” acquired not more than 7 years prior to its enactment. “Unexplained wealth” accumulated in the period prior to 2009 will not fall within the ambit of this legislation.

The new set-up is being proposed as a fundamentally civil procedure of forfeiture, despite some lines thrown in, involving an application to a judge in chambers for giving a nod to the proposed seizure order issued by the Agency. Decisions of the Agency need not pass the severe test of rules of evidence which constitute the basic requirement for cases to satisfy before ordinary law courts.

Accordingly, a person will be charged as having “unexplained wealth” and the onus shall lie on that “accused” person to establish, on a balance of probabilities, that the property in question is not unexplained wealth, a complete reversal of the principle of presumption of innocence until proved guilty on which our entire judicial system rests. It goes against the same presumption enshrined in our Constitution. Consequently, the proposed legislation also involves amending the Constitution to bypass this presumption of innocence. The government intends to go down this route.

If the person charged with having “unexplained wealth” – but not having been subjected to any criminal trial for any offence allegedly committed by him in this regard – were to refuse to explain within 21 days or a prescribed period by the ministry’s Agency (not being part of the country’s judicial system) proffering the charge, he “shall, on conviction, be liable to a fine not exceeding 50,000 rupees and to imprisonment not exceeding one year”. This loss of liberty is not preceded, as one would have presumed in a rule of law context, by prior criminal proceedings.

An inscription of the “unexplained wealth” would follow thereafter. For all practical purposes, once the ministry’s Integrity Reporting Board has formed the opinion that a person has “unexplained wealth”, it will direct the ministry’s Integrity Reporting Services Agency to apply to a Judge in chambers for the confiscation of the property.

The following sections are relevant on the procedure for realizing the forfeited “unexplained wealth”:

“12. Privilege

(1) The Agency may, before submitting a report to the Board under section 5(2) of the legislation, inscribe a privilege in favour of the Government on the property in respect of which the person is unable to give a satisfactory account of his unexplained wealth.”

“17. Realisation of property

(1) Where an Unexplained Wealth Order is made and the order is not subject to an appeal, nor discharged, the property recovered and confiscated shall vest in the Agency.

(2) The Agency shall appoint a liquidator to realise any confiscated property.”

It should be quite clear that such processes will attract stigma to the person whose property would be forfeited under the circumstances. So, anyone having “qualified” for public exposure in the hands of the Agency during the past 7 years should be prepared for the public vilification to which he would stand exposed if the legislation were to go through. It is expected that the proposed legislation will come into force on 1st January 2016. Those who would have done their deeds earlier than during the past 7 years should not worry.

As it is, therefore, the proposed legislation overtakes the Constitution concerning the presumption of innocence. It also inflicts a “punishment” by taking away a person’s wealth or property without any specific allegation of wrongdoing and/or proving beyond reasonable doubt, as any normal rule-of-law justice system would require, that a “crime” has been committed by accumulating the so-called “unexplained wealth” subject of the forfeiture. The proposed system doesn’t also state whether it will establish which are the parties which have suffered prejudice in the process of accumulation of the alleged “unexplained wealth”, needing to be compensated therefor?

There is no need under the provisions of the proposed Bill to establish any breach of criminal law. No need either to “establish” guilt of the owner of the alleged “unexplained wealth”. No need to apply the rules of evidence to prove guilt beyond reasonable doubt. No need to establish that the person being deprived of his “unexplained wealth” was involved in any wrongdoing or, if so, which one? In fact, the Agency is to overtake other enforcement institutions were it to embark on a case to establish its suspicions on any individual.

Without going into a detailed analysis of the proposed legislation, it appears that the government is aware of its overall Constitutional invalidity. This is why it is going about amending the Constitution to give it legitimacy. The proposed legislation effectively overrides the judicial process which has the duty to ensure that punishment is not inflicted and rights of citizens not interfered with without the fair and impartial application of the relevant law to facts needing to be ascertained in the first place. It is in fact disrespectful of the separation of powers that has been with us ever since Mauritius was established.

The Labour government of 2010-14 was swept out of power for having proposed to amend the Constitution to suit its and its ally’s, the MMM’s, convenience at the last polls. Since then, the public in Mauritius views with high suspicion motives politicians may be having whenever tampering or attempting to tamper with the Constitution.

They will consider it a great disservice to the country’s international image were our Constitution to be tampered with to reverse the principle of presumption of innocence enshrined in it. They will also not take it kindly if the higher principle of our good track record in matters of law and the application of the law were subverted to enhance the power of individual ministers. The government members are faced therefore with a huge responsibility not to allow our judicial system to be subverted.

For the sake of the greater good, the government should, in our view, be prioritizing actions which aim at enhancing substance rather than incurring the risk of detracting from whatever little we’ve been able to achieve so far. The proposed Bill will throw us in the bad lot of countries which send the worst possible signals to potential investors in the economy. Sanitizing à outrance does not attract business. This is what we appear to be set on for the sake of giving a mission to a specific minister. Wouldn’t it have been safer to deal with individual cases the time it takes according to existing processes of our legal system rather than bringing in a whole gamut of Constitutional and legislative changes to deal with the particular by generalizing?